Opinion
DA 23-0649
11-21-2023
STATE OF MONTANA, Defendant and Appellee, v. STEPHANIE BYINGTON, Defendant and Appellant.
ORDER
Stephanie Byington petitions this Court for an out-of-time appeal and includes a motion to proceed without paying the filing fee on appeal. All documents were verified at the Montana Women's Prison (MWP) where Byington is housed, although none of them contained a certificate of service. M. R. App. P. 5.
Byington states that she timely discussed filing an appeal with her attorney, but that it was not filed. She indicates her attorney told her "to start the process, and I have been trying to figure out how to file this paperwork." She adds that she filed a Notice of Appeal, but sent it to the District Court. Byington includes a copy of her sentencing judgment.
On July 26, 2022, the Cascade County District Court sentenced Byington to MWP for a 100-year term and imposed a 30-year parole ineligibility restriction for her conviction of accountability to deliberate homicide, and a ten-year, consecutive prison sentence for her conviction of criminal child endangerment, with a corresponding ten-year parole ineligibility restriction, pursuant to a plea agreement. The court awarded 980 days of credit for time served.
We secured a copy of the register of actions for Byington's criminal case. On September 16, 2022, the District Court filed a Notice of Ex Parte Communication sent by Byington, which asked about the status of her sentence review proceeding. She stated that, after receiving the application for sentence review from her attorney in August 2022, she submitted the application for sentence review and that she "was wondering what the process is of a sentence review and if a sentence review is the same as a[n] appeal." The Sentence Review Division has since re-scheduled her hearing from September 29, 2023, to April 5, 2024.
M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary' circumstances amounting to a gross miscarriage of justice[.]" While more than a year has elapsed since Byington's sentencing, it nonetheless appears that she sought information about an appeal in a timely fashion in 2022, and was not accordingly advised. This Court thus concludes this is an infrequent harsh case with extraordinary circumstances. Byington has recent convictions and sentences. She may be entitled to representation of counsel in this appeal. Section 46-8104, MCA. Accordingly, IT IS ORDERED that Byington's Petition for an Out-of-Time Appeal is GRANTED.
IT IS FURTHER ORDERED that the Appellate Defender Division is APPOINTED to represent Stephanie Byington. The Appellate Defender Division shall have thirty days from the date of this Order within which either to file a Notice of Appeal or a Motion to Rescind this Order Appointing Counsel. When Byington qualifies for appointed counsel, the Appellate Defender Division shall immediately order the appropriate transcripts.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Appellate Defender Division; to Austin M. Knudsen, along with a copy of Byington's Petition; to Joshua Racki and Kory Larsen, Cascade County Attorney's Office, along with a copy of Byington's Petition; and to Stephanie Byington personally.